With lawmakers trying to figure out how to keep the United States from going over a “fiscal cliff” at the end of the year – when the Bush-era tax cuts expire – there is much talk about improving the efficiency of the federal government. This talk sends a chill down my spine because I know how “efficiency” can be a fuzzy word for many in the Executive Branch, particularly when it comes to “efficiency of the service.”

Agencies are authorized to subject employees to adverse actions “only for such cause as will promote the efficiency of the service,” according to 5 U.S.C. § 7513(a). Efficiency of the service is a critical component of disciplinary actions. The Merit Systems Protection Board has called it the “ultimate criterion.” But this phrase can seem broad and vague, much like politicians’ talk to improve the efficiency of the government. In Deborah Morgan v. U.S. Postal Service (1991), the MSPB clarified matters by noting that “[a]n adverse action promotes the efficiency of the service when the grounds for the action relate to either an employee’s ability to accomplish his duties satisfactorily or to some other legitimate government interest.”

The efficiency of the service standard must be met in every removal case. In the past, the types of conduct found to meet the “efficiency of the service” requirement and meriting removal includes, but is not limited to, unacceptable performance, misuse of government property, and unauthorized absences, the Board noted in Tyrone Perkins v. Dep’t of Veterans Affairs (2011). Dishonest activity that puts the employee’s trustworthiness and reliability in doubt could also merit removal in order to “promote the efficiency of the service.” The same is true for off-duty misconduct so long as the agency can link the misconduct to the efficiency of the service by showing adverse affects on its mission or on the employee’s or co-worker’s job performance (i.e. “nexus”), according to the Board.

Agencies, however, may jump the gun when concluding that an employee’s removal promotes the efficiency of the service if he or she is having difficulty performing his or her duties because of a temporary disability or other factors. Morgan v. USPS, for example, involved a postal service letter clerk who suffered from a permanently disabling back condition that prevented her from performing her duties. The agency removed her, citing her physical inability to perform her duties due to her back condition. Before the MSPB could issue a decision in the case, the employee’s condition improved and the agency reinstated her to her position as a letter carrier. But the MSPB ruled that the letter carrier’s recovery underscored that her removal did not promote the efficiency of the service. The agency asked the MSPB to reconsider this decision, but the Board denied this request, stating: “The Board, as the ‘last voice’ in the Executive Branch, must avoid the manifest absurdity of upholding a removal for physical incapacitation when intervening events show that the appellant is no longer incapacitated and, thus, removal cannot promote the efficiency of the service.”

If you are a federal employee facing removal you should immediately consult with a federal employment law attorney. Depending on the circumstances, a lawyer could help you demonstrate how your employer’s proposed adverse action would fail to promote the efficiency of the service. Further, if the proposed adverse action is linked to a medical condition, an attorney may be able to assist you in obtaining a reasonable accommodation in accordance with the Rehabilitation Act that would allow for more efficient performance.

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About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel and can be reached at mtully@fedattorney.com. To schedule a meeting with one of the firm’s federal employment law attorneys call 202-787-1900. The information in this column is not intended as legal advice.